Back
2019 Supreme(Guj) 432
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
Vandanaben Naginbhai Patel - Petitioner
Versus
Gujarat State Forest Development Corporation & Others - Respondents
R/Special Civil Application No. 24955 of 2007
Decided On : 12-04-2019
For the Petitioner: Ms. Vidhi J Bhatt
For the Respondent:Mr. Prakash Jani, Additional Advocate General With Ms. Nidhi, Vyas And Mr. Vishrut Jani, Assistant Government Pleader, Mr. Nandish Chudgar With Mr. Nirav Joshi And Mr. Divyesh D., Bais For Nanavati Associates.
Headnote:
Constitution of India - Articles 14,16 Right to Information Act - Specific Relief Act - Section 34 - Present writ petition, the petitioner has, inter alia sought for quashing and setting aside the impugned order dated passed by the respondent - Corporation and also seek a direction to the respondent - Corporation to reconsider the case of the petitioner for absorption on the permanent setup in Class-III and to consider the case of the petitioner for regularisation of service from the date of the initial appointment as Clerk/Typist and to provide information as asked by the petitioner under the Right to Information Act about all daily wage workers, who have been made permanent by the respondent – Corporation for the period - Present petitioner belongs to Scheduled Caste - Petitioner was appointed as Clerk/Typist with the respondent – Corporation vide order dated - Petitioner was appointed as a daily wager - Appointment order of the petitioner was issued by the respondent - Learned Senior Counsel appearing for the petitioner has submitted that the appointment of the petitioner is in consonance with Articles of the Constitution of India - He has submitted that applications were invited by the respondent – Corporation for filling up the posts of Clerk/Typist pursuant to which the present petitioner had applied - He has submitted that it has also never been the case of the respondent - Held, Petitioner from the initial stage can be said to be de hors provision of the recruitment rules and she was appointed as a Clerk-cum-Typist without following necessary procedure - Supreme Court has held that where the person appointed does not possess the prescribed minimum qualifications, the appointments shall be considered to be illegaI - It is not in dispute that the petitioner did not possess the prescribed qualification of Graduation which is mandatory for the post of Clerk-cum- Typist as she was only as per the exception as referred hereinabove by the Supreme Court, once an order of appointment itself has been bad at the time of initial appointment - It cannot be sanctioned at a later stage - Reliance placed on the judgment in case of Trust cannot apply in the facts of the case since in the case before the Court the teachers at the time of their appointment were fulfilling the requisite criteria prescribed for the post - Petitioner to regularize in service does not merit acceptance it will be open for the respondent – Corporation to pass appropriate order treating her as a daily wager in light of the observations and directions issued by this Court in the judgment and order of the even date passed in Special Civil Application - While considering her case sympathetically the respondents shall consider her educational qualification vis a vis her length of service and pass appropriate order - Petition is disposed.
1. By way of the present writ petition, the petitioner has, inter alia, sought for quashing and setting aside the impugned order dated 7-10.09.2007 passed by the respondent - Corporation and also seek a direction to the respondent – Corporation to reconsider the case of the petitioner for absorption on the permanent setup in Class-III and to consider the case of the petitioner for regularisation of service from the date of the initial appointment as Clerk/Typist and to provide information as asked by the petitioner under the Right to Information Act, 2005 about all daily wage workers, who have been made permanent by the respondent – Corporation for the period from March 1991 to December 2006.
2. The facts of the case are that the present petitioner belongs to Scheduled Caste. The petitioner was appointed as Clerk/Typist with the respondent – Corporation vide order dated 15.03.1991. The petitioner was appointed as a daily wager. The appointment order of the petitioner was issued by the respondent No.3 – Deputy Forest Officer, Valsad (North).
3. Learned Senior Counsel Mr. Shalin Mehta appearing for the petitioner has submitted that the appointment of the petitioner is in consonance with Articles 14 and 16 of the Constitution of India. He has submitted that applications were invited by the respondent – Corporation for filling up the posts of Clerk/Typist pursuant to which the present petitioner had applied. He has submitted that it has also never been the case of the respondent – Corporation that the appointment of the petitioner is either illegal or irregular.
3.1 He has further submitted that as the petitioner was made to languish on daily wages for more than 10 years and she was made to suffer exploitation by not being granted any service benefit and by not applying Government Resolution dated 17.10.1988 of the Roads and Buildings Department to her, the petitioner, alongwith three other employees, was constrained to institute a suit being Regular Civil Suit No.57 of 2005 in the Court of the Civil Judge (S.D.), Valsad on 16.04.2005. The petitioner prayed for a declaration under Section 34 of the Specific Relief Act that the plaintiffs be absorbed by the respondent – Corporation in its permanent setup.
3.2 He has further placed reliance on the judgment of the Supreme Court in the case of Bhartiya Seva Samaj Trust Through President and Another Vs. Yogeshbhai Ambalal Patel and Another, (2012) 9 SCC 310 and has submitted even if it is presumed that the appointment of the petitioner was illegal, the respondents cannot be permitted to take benefit of their wrong.
4. Learned advocate Mr.Chudgar appearing for the respondent No.1 has submitted that the Government Resolution dated 17.10.1988 cannot be made applicable to the petitioner since her initial appointment was illegal.
4.1 It is submitted that Regular Civil Suit No.57 of 2005 was filed by the petitioner along with other three persons in the Court of learned Civil Judge (SD), Valsad on 16.04.2005 which was subsequently withdrawn. However, the petitioner has maliciously concealed the fact that the Civil Judge (SD), Valsad had ordered recovery of costs from the petitioners which was very vital and was needed to be disclosed by the petitioner to decide the present petition in its proper perspective. Pursuant to the said order of Civil Judge (SD), Valsad the respondent – Corporation had recovered legal costs from the salary of the four petitioners including the present petitioner.
4.2 He has submitted that the respondent – Corporation has a practice of making permanent daily-wagers, who have put in long years of service. The said order dated 17.10.2006 was issued by GSFDC to give effect to the order dated 18.08.2006 passed by the Government of Gujarat to fill up the backlog quota of Other Backward Classes (OBC).
4.3 He has submitted that circular dated 21.01.1986 is not applicable to the GSFDC as GSFDC is a Company whereas, the said circular applies only to those offices of the Gove
